Online Content Law Fails Constitutional Scrutiny

PHILADELPHIA (CN) – On remand from the Supreme Court, the 3rd Circuit struck down the Child Online Protection Act, saying the law is substantially overbroad and is not the least restrictive means for protecting minors from sexually explicit material online.

The act imposes civil and criminal penalties, including up to six months in prison, for anyone who knowingly posts “material that is harmful to minors” on the Web “for commercial purposes.” Harmful material includes communications that are obscene or, patently offensive or appeal to the “prurient interest,” as defined by community standards. The day after the COPA became law on Oct. 21, 1998, a group of content providers, Web users and the American Civil Liberties Union filed suit, seeking to bar its enforcement. The district court granted a preliminary injunction, and pointed out that filtering and blocking technology was a more effective and less restrictive way to shield minors from online sexual content. The appellate court agreed, concluding that the “community standards” language rendered the act unconstitutionally overbroad. After two appeals to the Supreme Court, the case was again remanded to the district court to determine whether Internet content filters and other alternatives are more effective than the COPA restrictions. In 2007, the court concluded that the COPA “facially violates the First and Fifth Amendment rights of the plaintiffs for three reasons: It is not narrowly tailored to the compelling interest of Congress, the government failed to show that the statute is the least restrictive and most effective alternative, and the law is “impermissibly vague and broad.” The government appealed, arguing that the lower court focused on the “marginal cases” of Web publishers who provide their content for free and ignored the “heartland” of the law’s proscriptions. “The fact that COPA places burdens on Web publishers whom the Government does not consider to be within the ‘heartland’ of the statute does not make those burdens any less onerous or offensive to the principles of the First Amendment,” Judge Greenberg wrote. The court said the evidence shows filters are more effective and less restrictive than the act – in part, because filters bar minors from seeing all pornography on the Web, not just pornography posted from computers in the United States.